IMPORTANT POINT
Consumer Fora are not bound to refer dispute to Arbitral Tribunal in terms of valid arbitration clause in agreement.

Ashok Bhan, J., President—In this batch of cases (Revision Petitions and the Original Petitions) a two Members Bench has referred the following question of law to a larger Bench for consideration and opinion:-

“ Whether the consumer fora constituted under the Consumer Protection Act, 1986 are bound to refer the dispute raised in the complaint, once an application under section 8 of the Arbitration and Conciliation Act, 1996, is filed by the opposite parties seeking reference of the dispute to an Arbitral Tribunal in terms of valid arbitration agreement, despite the provisions of Section 3 of the Consumer Protection Act, 1986. “

2. For the sake of brevity, we do not wish to recapitulate the facts of each case. The facts are taken from Revision Petition No. 412 of 2013.

3. The parties are being referred as per their original status as the Complainant and the Opposite Party.

FACTS:-

4. Complainant booked a flat No.810 with two parking spaces with the Opposite Party DLF Ltd. in its building project at The Aralias, Gurgaon and an Apartment Buyer’s Agreement was executed between the parties on 5.11.04. The apartment was sold by the opposite party to the Complainant on bare shell concept. The interior works were to be done by the Complainant with various facilities to be provided by the Opposite Party on chargeable basis to complete the apartment. By letter dated 24.10.09, Opposite Party cancelled the allotment of apartment as the Complainant neither made the payment demanded by it nor did it undertake the interior work of the apartment. Complainant vide letter dated 05.12.09 requested the Opposite Party for withdrawal of the cancellation letter. Opposite Party offered to restore the allotment of apartment to the complainant subject to payment of Rs.1,09,63,010/- inclusive of holding charges, penalties and restoration charges. Complainant agreed to pay all amounts except restoration charges of Rs.59,00,000/- and accordingly sent a cheque of Rs.50,63,010/- to the Opposite Party which was sent back by it to the Complainant. Complainant, being aggrieved, filed the complaint before the State Commission.

5. During the pendency of the complaint before the State Commission, Opposite Party filed Misc. Application No.688 of 2010 under Section 8 of the Arbitration and Conciliation Act, 1996 for referring the dispute for arbitration under clause 51 of the Apartment Buyer’s Agreement dated 5.11.04.

6. State Commission by its interim order dated 04.01.11 dismissed the M.A.No.688/2010 by observing as under:-

“ In the above cited P. Anand Gajapathi Raju’s case (Supra), the applicant fulfilled the pre-requisite conditions of Section 8. Another authoritative pronouncement of the Hon’ble Apex Court in Branch Manager, Magna Leasing and Finance Ltd. and Anr. v. Potluri Madhavilata and Anr. (Supra) is also on the same footing wherein the pre-requisite conditions were fulfilled by the applicant for referring the matter to the arbitrator. But in the instant case the applicant/opposite party submitted itself to the jurisdiction of the State Consumer Commission to entertain and decide this complaint when it first applied for setting aside of ex-parte proceedings challenging the orders dated 30.07.10 and 17.8.2010 which were stayed by the Hon’ble National Commission vide order dated 24.09.2010 with respect to carrying out the repair work in the flat by opening the lock of the flat. Thus, keeping in view that the applicant/opposite party sought adjournment on one pretext or the other, sometime for compromise and sometime for setting aside ex-parte order and also filed revision petition before the Hon’ble National Commission against the ex-parte order wherein stay was granted, it should show that the applicant/opposite party is bent upon delaying this case by moving one application and the other. In this view of the matter, there is no force in this application which is totally against the provisions of Section 8 of the Arbitration Act as well as law discus